One aspect of the Energy Bill which has attracted little attention so far is Part 2 dealing with nuclear regulation. The licensing and regulation of nuclear installations is one aspect of regulatory law which has remained remarkably stable for decades: the principal statute remains the Nuclear Installations Act of 1965, which is the framework upon which the nuclear installations inspectorate built a highly sophisticated and effective structure of control. This has not been without its challenges – in particular the location of the nuclear inspectorate as an Directorate of the Health and Safety Executive has come to seem increasingly anomalous and has been a deterrent factor in recruiting highly specialised nuclear inspectors. This led to the creation of the Office for Nuclear Regulation as an agency of the HSE in April 2011. The Bill will put the ONR onto a statutory footing. It also reflects the significant expansion over the past few years of the inspectorate’s role from ensuring the safety of nuclear installations to the areas of nuclear security and safeguards, and the transport of radioactive materials.
Clause 57 creates the ONR as a body corporate. Schedule 7 provides for its constitution and membership and Schedule 8 provides for the appointment and powers of its inspectors, giving it independent powers as opposed to having to rely on the general powers of enforcement under the Health and Safety at Work Act 1974. It has a number of purposes, each of which is explained and defined, these being:
Nuclear safety in respect of nuclear installations and nuclear matter stored and used at such sites.
Nuclear site health and safety, securing the health and safety of those working at nuclear sites, protecting other person against risk arising from such work, and controlling the storage and use of dangerous substances at such sites.
Nuclear security, ensuring the security of civil nuclear premises, nuclear and other radioactive materials, sensitive nuclear information and equipment or software capable of being used for uranium enrichment.
Nuclear safeguards, ensuring compliance by the UK with its international safeguards obligations in terms of non-proliferation.
Nuclear transport, protecting against risks related to the civil transport of radioactive material in Great Britain, and ensuring the security of such material.
The Secretary of State can make regulations for any of these purposes. Interestingly, clause 56 provides that breach of a duty imposed by nuclear regulations will be actionable to the extent that it causes damage, whether or not an offence has been committed, and that any term of an agreement which purports to exclude or restrict such liability is void. However, this is expressed not to affect any right of action or defence which otherwise exists or may be available and so will not affect the provisions on channelling of liability in the Nuclear Installations Act 1965 (itself to be amended to reflect the changes made by the Protocol to the Paris Convention on liability).
The ONR will have the power to issue codes of practice giving practical guidance on the requirements of the relevant statutory provisions, and may submit proposals to the Secretary of State for new regulations. It will also be able to investigate and make special reports on relevant accidents, occurrences, situations or other matters which it considers desirable to investigate, or to authorise another person to do so. This might for example allow investigation of the implications of incidents such as the disaster at Fukushima, which might have consequences for regulation in the UK. Mike Weightman, Head of the ONR, is generally seen as having played a blinder in helping to lead the international response to Fukushima, which has significantly enhanced the ONR’s standing. The ONR may also hold formal inquiries, with the consent of the Secretary of State, and in accordance with regulations to be made by the Secretary of State.
There is also power for the ONR to provide services and facilities for its purposes to any person, and indeed (with the consent of the Secretary of State) to provide other services in a field in which a member of staff has particular expertise, to persons inside or outside the UK. Financial arrangements for such services are to the ONR to agree.
The Secretary of State will continue to hold the reins to a certain extent, in that they may give directions to the ONR, through notices which may be given to ensure compliance with the UK’s international obligations on safeguards, and through control of communications which have implications for nuclear security. There is also an obligation on the Secretary of State to carry out a review of the operation of Part 2 of the Act after 5 years, to assess the extent to which the objectives of the Bill have been met, whether they continue to be appropriate and whether they could be achieved in a way that imposes less regulation.
Effective regulation of nuclear activities is of course absolutely vital to provide the necessary public confidence for the technology to be acceptable. Putting the ONR onto a sound statutory footing is a start, but of course much will depend on how it is resourced and whether it can continue to attract top quality inspectors. It has a big task ahead simply in terms of the ongoing life and decommissioning of existing installations, let alone the construction and operation of a new generation of nuclear power stations with their associated facilities.